Citation Nr: 0607781
Decision Date: 03/17/06 Archive Date: 03/29/06
DOCKET NO. 03-36 100 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska
THE ISSUE
Entitlement to an initial disability evaluation in excess of
20 percent from April 29, 2003, and in excess of 40 percent
from October 1, 2003, for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from November 1942 to
February 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision of the
VARO in Lincoln, Nebraska, that granted service connection
for hearing loss and assigned a 20 percent disability
evaluation, effective April 29, 2003, the date receipt of the
claim for disability benefits. The Board notes that in that
same rating decision service connection for tinnitus was
granted. A 10 percent rating was assigned, effective
April 29, 2003.
Subsequent thereto, in a decision dated in October 2003, the
disability for hearing loss was increased from 20 percent to
40 percent disabling, effective October 1, 2003, the date of
a VA audiologic examination. In a December 2003 statement,
the veteran continued to express disagreement with the
disability rating assigned by VA, and the appeal is now
before the Board for appellate review.
In accordance with the provisions of 38 C.F.R. § 20.900(c)
(2005), the veteran's appeal has been advanced on the Board's
docket for good cause shown.
FINDINGS OF FACT
1. All available evidence and information necessary for an
equitable disposition of the appeal has been obtained.
2. From April 29, 2003 through September 30, 2003,
audiologic evaluation reflected hearing loss manifested by
Level IV hearing acuity in the right ear, and Level VIII
hearing acuity in the left ear.
3. On October 1, 2003, audiologic evaluation revealed
hearing loss manifested by Level VII hearing acuity in the
right ear, and Level VII hearing acuity in the left ear.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of
20 percent for bilateral hearing loss from April 29, 2003 to
September 30, 2003, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.385, 4.85,
4.86 (2005).
2. The scheduler criteria for a rating greater than
40 percent for bilateral hearing loss from October 1, 2003,
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.159, 3.321, 3.385, 4.85, 4.86 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist.
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West
2002 & Supp. 2005) and implementing regulations, codified at
38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2005) amended VA's
duties to notify and assist a claimant in developing
information and evidence necessary to substantiate a claim.
As explained below, the Board finds that all relevant
evidence has been obtained with regard to the veteran's claim
and that the requirements of the VCAA have been satisfied.
In Pelegrini v. Principi, 18 Vet. App. 120-21 (2005), the
United States Court of Appeals for Veterans Claims (Court)
held that under the VCAA, VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; (4) must
request that the claimant provide any evidence in his
possession that pertains to the claim. 38 U.S.C.A. § 5103;
38 C.F.R. § 3.159 (b).
During the pendency of this appeal, on March 3, 2003, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A. § 5103
and 38 C.F.R. § 3.159 apply to all five elements of a service
connection claim. Those five elements include: 1) veteran
status; 2) existence of a disability; 3) a connection between
the veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that the VCAA notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In the present appeal, the VCAA notice to the veteran did not
include the type of evidence necessary to establish a
disability rating or effective date for the disability on
appeal. Nevertheless, the Board finds no prejudice to the
veteran in proceeding with the issuance of a final decision
at this time. A review of this case reveals that the
September 2003 statement of the case contained the criteria
for rating hearing loss and discussed how the evidence did
not substantiate entitlement to a higher disability rating.
Further development is not necessary especially in this type
of case where the rating to be assigned is based on a
mechanical application of the rating criteria. The
discussion in the statement of the case served to put the
veteran on notice of the evidence needed to substantiate his
claim.
The Board finds that the veteran has been provided with the
required notice and that all indicated development has been
completed. The veteran has been afforded required
examinations by VA. Hence, no further notice or assistance
to him is required to fulfill VA's duty to assist in the
development of the claim. Smith v. Gober, 14 Vet. App. 227
(2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The
Board notes that the veteran has not made any argument as to
the effective date to be assigned.
Legal Criteria
Disability evaluations are determined by comparing the
veteran's current symptoms with the criteria set forth in
VA's Schedule for Rating Disabilities (Rating Schedule).
These are based on the average impairment in earning capacity
resulting from a service-connected disability. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 54 (typed as dictated). The veteran's
entire history is reviewed in making disability evaluations.
See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski,
1 Vet. App. 589 (1991). Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, it is the current level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). However, where, as here,
the question for consideration is the propriety of the
initial evaluation assigned, evaluation of the medical
evidence submitted since the grant of service connection and
consideration of the appropriateness of a "staged rating" is
required. See Henderson v. West 12 Vet. App. 119, 126
(1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. After careful consideration
of the evidence, any reasonable doubt remaining is to be
resolved in favor of the veteran. 38 C.F.R. § 4.3.
In accordance with the Rating Schedule criteria for diseases
of the ear and other sense organs, as set forth in 38 C.F.R.
§§ 4.85, 4.86, and 4.87, an examination for hearing
impairment must be conducted by a state licensed audiologist
and must include a controlled speech discrimination test
(Maryland CNC) and pure tone audiology tests. The
examinations are to be conducted without the use of hearing
aids.
Evaluations of hearing impairment range from noncompensable
to 100 percent based on organic impairment of hearing acuity
as measured by the results of controlled speech
discrimination tests, together with the average hearing
threshold level as measured by pure tone audiological tests
in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz.
The rating criteria establish 11 auditory acuity levels
designated from I to XI. As set forth in the regulations,
Tables VI, VI(a), and VII are used to calculate the rating to
be assigned. See 38 C.F.R. § 4.85 (Diagnostic Code 6100).
Additionally, the regulations allow for evaluating
exceptional patterns of hearing impairment. When the pure
tone threshold of each of the four specified frequencies
(1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or
more, Table VI or Table VI(a) is to be used, whichever
results in the higher numeral. Each ear will be evaluated
separately. 38 C.F.R. § 4.86(a). When the pure tone
threshold is 30 decibels or less at 1,000 Hertz, and 70
decibels or more at 2,000 Hertz, Table VI or Table VI(a) is
to be used, whichever results in the higher numeral.
Thereafter, that numeral will be elevated to the next higher
numeral. Each ear will be evaluated separately. 38 C.F.R.
§ 4.86(b).
Analysis
Received in July 2003 was a statement from the veteran's
daughter. She recalled that over the years she and others
had always had to speak loudly to ensure that the veteran
heard what they were saying. She noted the veteran made
speakers to place by his chair so that he could hear the
television.
Also received in July 2003 was a statement from a longtime
acquaintance who recalled that he had never known the veteran
not to have hearing aids to improve his communication. He
had observed the veteran and opined it was at times difficult
for the veteran to understand what he was saying unless he
concentrated on the individual's face.
A VA audiological examination was accorded the veteran in
July 2003. The claims file was available to the examiner for
review. The veteran indicated he had worn hearing aids for
many years, and reported benefit from the aids, but claimed
he still could not understand conversations as well as he
wished.
He was evaluated for pure tone stimuli, speech stimuli,
including recorded Maryland CNC word lists, and acoustic
immitance. The results on pure tone threshold testing in the
right ear showed an average decibel loss of 71 with a speech
recognition score of 78 percent. In the left ear, the
average decibel loss was 69, with a speech recognition score
of 56 percent. The results correlate to Level IV hearing
impairment in the right ear and Level VIII hearing impairment
in the left ear. When these levels are combined, a
20 percent rating is warranted. This is the rating assigned
to the veteran since the date of receipt of his claim on
April 29, 2003.
In an August 2003 statement a private audiologist referred to
an audiogram study done by her in June 2003. She indicated
that the percentage of hearing impairment in the right ear
was 58 percent, while that in the left ear was 51 percent.
She indicated that the hearing impairment in both ears
together was 52 percent. She acknowledged that the
percentage of hearing impairment had no relation to VA's
calculation of the percentage of disability present.
The veteran was accorded another audiometric examination by
VA on October 1, 2003. At that time, he reported decreased
hearing bilaterally. He claimed he had poor understanding of
speech in background noise and crowds. He also complained of
constant tinnitus. It was noted he had been fit Siemen's
hearing aids by VA in September 2002. It was noted that the
veteran showed mild to profound sensorineural hearing loss
bilaterally. He also had bilateral tinnitus. On
examination, pure tone results in the right ear resulted in
an average of 71 decibels with a 60 percent discrimination
score. This results in a Level VII number designation. The
left ear testing showed an average decibel loss of 69 with a
speech discrimination of 64 percent. This translates to a
Level VII hearing impairment as well. In going to the tables
for evaluation of hearing impairment, Level VII in each ear
translates to a 40 percent disability rating.
The assigned evaluation for bilateral hearing loss is
determined by mechanically applying the rating criteria to
certified test results. See Lendenmann v. Principi¸
3 Vet. App. 345, 349 (1992). As such, there is no basis to
establish a higher rating than the 20 percent rating assigned
from April 29, 2003, or the 40 percent rating assigned from
October 1, 2003.
The above determinations are based upon consideration of
applicable rating provisions. Additionally, there is no
showing that the veteran's bilateral hearing loss reflects so
exceptional or unusual a disability picture as to warrant the
assignment of any higher evaluation on a scheduler basis.
See 38 C.F.R. § 3.321. In this case, there is no evidence
showing that the disability results in impairment beyond that
contemplated in the evaluation assigned or that it basically
renders impractical the application of the regular schedular
standards.
The Board has considered the statements by the veteran and
others with regard to his claim for an increased rating for
his hearing loss disorder. While the Board does not doubt
the sincerity of the veteran's belief that his hearing loss
disability is more severe than is currently rated, as a lay
person without the appropriate medical training or expertise,
he simply is not competent to provide a probative opinion on
a medical matter such as the severity of the current
disability as evaluated in the context of the rating
criteria. See Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) (a lay person is generally not capable of opining on
matters requiring medical knowledge..."). As such, the
veteran's assertions cannot provide a basis for a grant of an
increased rating. The Board notes that with the mechanical
application of the Rating Schedule, it basically has no
discretion in this matter and must predicate its
determination on the basis of the objective audiology data of
record. Accordingly, the claims for a disability rating
higher than 20 percent from April 29, 2003, and a rating in
excess of 40 percent from October 1, 2003, must be denied.
ORDER
A disability rating in excess of 20 percent for bilateral
hearing loss from April 29, 2003, is denied.
A disability rating in excess of 40 percent for bilateral
hearing loss from October 1, 2003, is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs